In this important decision, the New Hampshire Supreme Court held that an individual employee can be personally liable for discrimination in the workplace under RSA 354-A.
The plaintiffs in this case had sued both their employer and an individual employee, Fred Fuller, for sexual harassment and retaliation under RSA Chapter 354-A. RSA Chapter 354-A, known as the “Law Against Discrimination,” prohibits unlawful discrimination based upon age, sex, race, creed, color, marital status, familial status, sexual orientation, physical or mental disability or national origin in employment, housing accommodations, and places of public accommodations. In addition to prohibiting an employer from taking adverse employment actions, such as in hiring and firing or compensation decisions, the statute also prohibits harassment based on a protected class.
Central to this decision, the law does not only prohibit employers from certain conduct. It expressly prohibits “any person, employer, labor organization, employment agency, or public accommodation” from “[a]iding, abetting, inciting, compelling or coercing another or attempting to aid, abet, incite, compel or coerce another to commit an unlawful discriminatory practice” and “any person engaged in a prohibited practice from retaliating against an individual who opposes workplace discrimination or who participates in any complaint proceeding opposing workplace discrimination.”
The statute defines “person” broadly to include “one or more individuals.” Therefore, the Court held that the statute’s inclusion of “any person” meant that an individual employee could be held personally liable for aiding and abetting another in engaging in a prohibited practice. RSA 354-A:2, XV(d). However, the Court made it clear that for such an individual to be personally liable, the plaintiff must prove that the individual defendant aided and abetted an employer in committing an unlawful discrimination practice. In other words, there can be no individual liability if there is not also liability on the employer. Similarly, the Court then held that any person who retaliates against another person in the workplace because he or she has taken any of the specified protected actions is liable, under RSA 354-A:19, for an unlawful discriminatory practice.